STATE OF MINNESOTA

IN COURT OF APPEALS

A12-0193

State of Minnesota,

Respondent,

vs.

Terrell Matthew Dixon,

Appellant.

Filed November 5, 2012

Affirmed

Stoneburner, Judge

Hennepin County District Court

File No. 27-CR-10-3378

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Michael Richardson, Assistant County

Attorney, Minneapolis, Minnesota (for respondent)

William Ward, Hennepin County Public Defender, Mary F. Moriarty, Assistant Public

Defender, Minneapolis, Minnesota (for appellant)

Considered and decided by Connolly, Presiding Judge; Stoneburner, Judge; and

Ross, Judge.

S Y L L A B U S

1. Because friction-ridge-print identification using the methodology of

analysis, comparison, evaluation-verification (ACE-V) is used mainly in connection with

forensics, individuals actually involved with friction-ridge-print analysis using the ACE-

V methodology, as well as individuals engaged in researching the validity of ACE-V

analysis, constitute the relevant scientific community that must widely share the view that

2

friction-ridge-print identification is reliable for purposes of establishing the admissibility

of such identification evidence under the Frye prong of the Frye-Mack standard.

2. The state, proponent of friction-ridge-print-identification evidence in this

case, met its burden of showing that ACE-V friction-ridge-print analysis, conducted by

experienced examiners using appropriate standards and controls, is widely accepted as

scientifically reliable by the relevant scientific community.

3. The record supports the district court’s finding that the friction-ridge-print

analysis performed in this case conformed to the procedures necessary to ensure

reliability.

4. The district court did not abuse its discretion by holding that the friction-

ridge-print examiner in this case could testify that she made her identification

determination “to a reasonable scientific certainty.”

O P I N I O N

STONEBURNER, Judge

Appellant was charged with first-degree burglary based primarily on finger- and

palm-print evidence collected at the scene. Appellant requested a Frye-Mack hearing to

determine the admissibility of evidence that he is the source of the prints found. After a

four-day Frye-Mack hearing, the district court concluded that the state had met its burden

to establish that friction-ridge-print identification using the ACE-V methodology is

generally accepted by experts in the field as reliable and that the examiner in this case

complied with the appropriate standards and controls and could testify that she reached

her resulting conclusions “to a reasonable scientific certainty.” The underlying case was

3

then submitted to the district court on stipulated facts. The district court found appellant

guilty of first-degree burglary and imposed a sentence. This appeal followed, challenging

the admission of the identification evidence.

FACTS

In December 2009, Minneapolis Police Department forensic scientist Jenny

Bunkers, a crime-scene investigator, responded with police officers to the scene of a

residential burglary. Bunkers photographed and processed the scene for latent-print

evidence. She collected evidence of ten latent prints and took them to the Minneapolis

Crime Laboratory (the lab) for analysis. Bunkers is certified through the International

Association for Identification (IAI) in crime-scene investigation and, at the time of her

involvement in this case, she had completed three of four parts of the examination for

certification as a latent-print examiner.1

In 2009, the lab was accredited through the American Society of Laboratory

Directors – Laboratory Accreditation Board (ASCLD-LAB). Accreditation is valid for

five years, with annual audits that include submitting a report to ASCLD documenting an

internal audit, proficiency tests, review of standard operating procedures (SOPs), any

management changes, new trainees, competency tests passed, and any corrective action

for nonconformities. The report is verified by a team from ASCLD.

Bunkers applied the ACE-V methodology under the lab’s SOPs. The “ACE”

portion of the analysis involves: (A) analyzing the latent prints to determine if there is

1 The portion of the latent-print certification that Bunkers had not completed consists of a

review of testimony she has given in court to determine that she can accurately answer

questions in court.

4

sufficient detail to proceed; (C) comparing the latent prints with exemplars of known

sources obtained from print cards of known individuals or from a database search; and

(E) evaluating the results to conclude that (1) a particular individual made the latent print

(identification), (2) someone else made the latent print (exclusion), or (3) no conclusion

can be reached (inconclusion). “V” stands for verification, which is always performed

under the lab’s SOPs when there is identification. For verification, an identification

evaluation is given to another lab examiner who conducts an independent ACE analysis

of the latent print or prints as a quality-control check on the first examiner.2

In this case, Bunkers identified seven prints (four fingerprints and three palm

prints) as having sufficient detail to proceed to the comparison stage. Because there were

no known suspects, she ran the latent prints through the Midwest Automated Fingerprint

Identification Network (MAFIN), which contains fingerprint exemplars for

approximately 3.4 million individuals. MAFIN contains fingerprints from all convicted

felons from Minnesota, North Dakota, and South Dakota, as well as fingerprints of other

individuals, such as all of the employees of the Minnesota Bureau of Criminal

Apprehension (BCA). MAFIN also contains approximately 500,000 palm print

exemplars.

2 It is within the discretion of the first examiner to determine whether the verification is

blind (where the second examiner does not know the results of the first test) or non-blind

(where the second examiner has the results of the first examination at the time the second

examiner conducts the ACE analysis). The lab generally uses blind verification only in

the most difficult cases. The verifications of Bunkers’s identifications in this case were

non-blind.

5

Bunkers initially entered two latent fingerprints obtained from the scene of the

burglary into MAFIN, requesting the ten best matches. For both prints, MAFIN

identified the fingerprint card of appellant Terrell Matthew Dixon as the number one

match. Bunkers made her own comparison of the latent prints to Dixon’s exemplar,

evaluated the results, and concluded “identification.” Bunkers’s identification conclusion

for each print was validated by another lab examiner. Bunkers notified an investigator on

the case of the identification and continued to examine the rest of the prints obtained

from the scene. Bunkers’s comparison of the remaining prints to Dixon’s finger- and

palm-print exemplars resulted in Bunkers’s conclusion of “identification” for all of the

latent prints as being from Dixon. These identifications were verified.

Based primarily on the print-identification evidence, Dixon was charged with first-

degree burglary in violation of Minn. Stat. § 609.582, subd. 1(b) (2008). At Dixon’s

request, the district court conducted a Frye-Mack hearing to determine the admissibility

of the print-identification evidence.

During the Frye portion of the hearing, the state first called Glenn Langenburg, a

BCA forensic scientist III. Langenburg has a B.S. in forensic science from Michigan

State University, a master’s degree in analytical chemistry from the University of

Minnesota, and is completing a Ph.D. in forensic science, dealing specifically with the

ACE-V methodology, at the University of Lausanne, Switzerland. Langenburg has

conducted research regarding the validity of the ACE-V methodology and has published

extensively. He was elected to the Scientific Working Group on Friction Ridge Analysis,

6

Study and Technology (SWGFAST) in 2004.3 Langenburg was one of the latent-print

experts who testified before the National Academy of Sciences (NAS) committee that, in

2009, issued Strengthening Forensic Science in the United States: A Path Forward (2009

NAS report), a nearly 350-page report based on a study of forensic science conducted by

a NAS committee formed in 2006. The district court noted that Dixon “does not dispute

that [Langenburg] is a national (and maybe international) expert in Friction Ridge

Analysis.”

Langenburg testified that friction-ridge-print analysis relies on two foundational

principles: (1) friction-ridge skin is unique, and (2) friction-ridge skin is permanent.

These foundational principles are not challenged by Dixon. Langenburg testified in

detail about the ACE-V methodology performed according to SWGFAST guidelines and

procedures. He also described the databases available in Minnesota for obtaining

exemplars for comparison of latent prints. Langenburg described his own research and

the research of others testing the accuracy, reliability, and validity of latent-print analysis

using the ACE-V methodology. Langenburg opined that latent-print examination is

generally accepted within the relevant scientific community as consistent and highly

accurate if applied by trained, competent experts.

3 SWGFAST was created in 1995 to provide guidance on friction-ridge-print evidence.

The 40 members of SWGFAST include agency employees from federal, state, local, and

foreign bodies and from the academic and private sectors. SWGFAST drafts guidelines

that are adopted only after community review and comment. Accepted guidelines are

reconsidered five years after adoption. Guidelines address automation training, digital

imaging, friction-ridge-print analysis for latent-print examination, latent-print proficiency

testing, professional conduct, minimum qualifications and competency for latent-print

trainees, quality assurance, interpretation and conclusions, and validation research.

7

The state also called Dr. Cedric Neumann, an assistant professor in forensic

science and statistics at Pennsylvania State University. Dr. Neumann has a Ph.D. in

forensic science from the University of Lausanne, Switzerland. He is a trained latent-

print examiner who conducts research within the discipline, and he routinely interacts

with other trained examiners. He also trains examiners. He has been a member of

SWGFAST since 2008 and is a member of numerous other professional organizations

and committees specializing in latent-print comparison. Dr. Neumann serves on the

editorial board of the Journal of Forensic Identification, is a regular reviewer for the

Journal of Forensic Sciences, and takes part in various informal research groups that meet

to discuss research in latent-print analysis. The district court found that Dr. Neumann is

recognized by Dixon as an expert in friction-ridge-print analysis and is a member of the

relevant scientific community qualified to opine as to the views of experts in the field of

latent-print examination.

Dr. Neumann testified about a very recent study conducted by the FBI in response

to the 2009 NAS report. The FBI study involved 169 latent-print examiners and the

examination of many thousands of latent prints using the ACE methodology without the

verification step. The overall false-positive-identification rate was 0.1%. Dr. Neumann

testified about a number of his own studies, some conducted after the 2009 NAS report,

which support his conclusion that friction-ridge-print analysis is accurate, reliable, and

extremely powerful. The district court found that Dr. Neumann “credibly testified that

experts in the forensic science community widely share the view that the results of latent

8

fingerprint examination using ACE-V methodology and conducted using appropriate

standards and controls are scientifically reliable.”

For the Mack portion of the hearing, the state called Bunkers, who testified in

detail about her examination of the latent prints in this case using the ACE-V process

according to the lab’s SOPs, which include SWGFAST guidelines and standards.

Dixon called Dr. Simon Cole, an associate professor of criminology, law, and

society at the University of California, Irvine. Dr. Cole has a Ph.D. in science and

technology studies from Cornell University.4 Among other articles and portions of

books, Dr. Cole authored a book titled Suspect Identities: A History of Fingerprinting

and Criminal Identification, published by Harvard University Press in 2001. Dr. Cole,

who is not a latent-print examiner, testified that his work can be characterized as “the

sociology of forensic science.” Dr. Cole labeled himself a “meta expert,” an “expert

about experts.” He opined that he is qualified to give an opinion about whether the use of

ACE-V is generally accepted in the relevant scientific community because “it’s a

sociological question in a sense . . . simply polling the relevant scientific community,”

which, Dr. Cole states, he endeavored to do for an article published in 2008. Based on

his count, Dr. Cole opined that ACE-V is not generally accepted in the relevant scientific

community. Dr. Cole testified that more recent studies about latent-print analysis have

not changed his opinion. The district court concluded that Dr. Cole is “a partisan

advocate who views fingerprints as junk science” and found Dr. Cole’s testimony flawed,

4 Dr. Cole described science and technology studies as an interdisciplinary program

comprising history, sociology, philosophy, and policy studies of science and technology:

“We study how scientific facts are made and how technological artifacts are made.”

9

biased, and unpersuasive.5 On appeal, Dixon does not challenge the district court’s

credibility findings.

The defense also called Dr. Sandy Zabell, who teaches law and statistics at

Northwestern University. Dr. Zabell has a master’s degree in biochemistry and

molecular biology and a Ph.D. in mathematics from Harvard University. Dr. Zabell has

authored numerous published articles and was on the NAS committee that developed the

third edition of the Reference Manual on Scientific Evidence, designed primarily for the

federal judiciary.

Dr. Zabell, who has taught about the statistical methods used in forensic DNA,

became interested in the lack of support for statements being made by the “fingerprint

profession” that fingerprint analysis is 100% accurate. Dr. Zabell testified that the issue

of whether or not in some ultimate sense the surface of a finger contains enough detail to

uniquely identify a person is different from the question of whether or not there is enough

detail in a given latent print to make an identification by matching it with an exemplar.

Dr. Zabell testified that the ACE-V is a framework, rather than a methodology, in the

sense that it lays out a careful sequence of steps such that if two people carry them out

you would expect that they should essentially always come up with the same conclusion.

5 The district court reviewed the 2008 article authored by Dr. Cole in which he claims

that his count of nonacceptors of the reliability of fingerprint evidence outnumbers

acceptors and that the Frye jurisdictions should exclude fingerprint evidence. The district

court found that Dr. Cole refused to count fingerprint examiners because they are “not

scientists,” and that, in addition to counting degreed scientists as nonacceptors, Dr. Cole

also counted “anyone he [could] find who does not accept fingerprint analysis regardless

of scientific training including law professors, a psychologist, a political scientist, a

linguist, and a person with a BA in English.”

10

But there is no ACE-V manual and there is no precise statement as to how certain

determinations are made. Dr. Zabell contrasted the ACE-V framework with the

methodology for determining identification using DNA, in which calculations for

statistical analysis are painstakingly laid out at every stage of the process.

Dr. Zabell considers himself part of the relevant scientific community qualified to

opine about the acceptance of the scientific foundation of latent-print analysis, but not in

the relevant community qualified to opine about coming to a judgment about a particular

print analysis. Dr. Zabell testified that ACE-V is not accepted as an objective,

scientifically validated protocol but that it is viewed by many in the scientific community

as a framework for subjective assessment with a limited amount of detail. Dr. Zabell

stressed that he does not use “subjective” in a pejorative sense. Dr. Zabell testified that it

is not his opinion that fingerprint evidence is unreliable or should not be allowed in court;

rather, it is his opinion that it should be allowed with various safeguards about what an

examiner can say. The district court found Dr. Zabell’s testimony helpful.

In rebuttal, the state recalled Langenburg, who was permitted by the district court

to present new evidence based on a number of tests he ran in the BCA laboratory, after

his direct testimony, on the latent prints involved in this case. These tests verified

Bunkers’s identification conclusions. Using, as an example, the conclusiveness of the

comparison of one of the latent prints, Langenburg testified that, in his opinion, it would

be appropriate for Bunkers to testify that “Dixon has been identified as the source of [that

print].” Langenburg testified that, in his opinion, the likelihood of someone else being

the source is “vanishingly small” and small enough that he would dismiss as not a

11

“practical possibility that someone else could share as much information with that latent

print . . . to that level of agreement.” Langenburg testified that the scientific support for

identification is found in the error-rate studies that continue to show that latent-print

examiners are making decisions with exceptionally low error rates.

The district court initially orally granted the state’s motion to admit latent-print

identification evidence at trial and followed the oral order with a written order,

incorporating a 29-page thoroughly detailed memorandum supporting the order. The

district court stated that, under Minnesota caselaw, the relevant scientific community

consists of “experts in the field,” citing State v. Hull, 788 N.W.2d 91, 103 (Minn. 2010),

State v. Traylor, 656 N.W.2d 885, 891 (Minn. 2003), and State v. Roman Nose, 649

N.W.2d 815, 818 (Minn. 2002). The district court also cited State v. Fenney, 448 N.W.2d

54, 59 (Minn. 1989), for the proposition that when the test at issue is used mainly in

connection with forensics, forensics is the relevant field and those actually involved with

performing the involved test constitute the relevant experts in the field for purposes of the

Frye analysis. The district court concluded:

Finger print analysis using the ACE-V methodology is widely

accepted as reliable by experts in the relevant field. The

analysis [in this case] met the appropriate standards and

controls established by SWGFAST. [And] [t]he finger print

examiner may offer an opinion, to a reasonable degree of

scientific certainty, that [a] latent print and the exemplar print

share the same source.

Dixon then agreed to a stipulated-facts trial. The district court found him guilty

and sentenced him. This appeal challenging the district court’s Frye-Mack decision

followed.

12

ISSUES

I. What is the relevant scientific community for the purpose of applying the

Frye analysis to the admission of identification evidence based on latent-print

analysis?

II. Did the state meet its burden to demonstrate that friction-ridge-print analysis

using the ACE-V methodology is generally accepted within the relevant scientific

community?

III. Did the district court err in finding that the ACE-V process performed in this

case is reliable?

IV. Did the district court abuse its discretion by holding that the latent-print

examiner could testify that her opinion is “to a reasonable degree of scientific

certainty”?

ANALYSIS

Frye-Mack analysis

Minnesota applies the two-pronged standard for the admissibility of novel

scientific evidence comprised of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and

State v. Mack, 292 N.W.2d 764, 768-69, 772 (Minn. 1980). See Goeb v. Tharaldson, 615

N.W.2d 800, 809, 814 (Minn. 2000) (reaffirming Minnesota’s adherence to the Frye-

Mack standard). Under Frye, the proponent of novel scientific evidence is required to

show that the scientific principle or test about which an expert is to testify is generally

accepted within the relevant scientific community. Id. at 809. Under Mack, the

proponent of particular evidence derived from the application of the scientific principle or

13

test must “‘establish that the test itself is reliable and that its administration in the

particular instance conformed to the procedure necessary to ensure reliability.’” Id. at

814 (quoting State v. Moore, 458 N.W.2d 90, 98 (Minn. 1990)).6 “The trial court

determines whether the Frye-Mack standard has been satisfied by means of a pretrial

hearing. When the scientific technique that produces the evidence is no longer novel or

emerging, then the pretrial hearing should focus on the second prong of the Frye-Mack

standard.” Roman Nose, 649 N.W.2d at 819 (footnote omitted).

Because friction-ridge-print analysis has long been used in courts throughout the

United States, district courts have primarily focused on the admissibility of the particular

evidence proffered under a Mack analysis. But in Hull, Hull argued that the district court

erred by limiting a hearing on the admissibility of fingerprint-identification evidence to

the Mack analysis based on the district court’s conclusion that “fingerprints have been

generally accepted as scientifically reliable for a long time.” 788 N.W.2d at 103. Hull

argued that the Minnesota Supreme Court has never squarely held that fingerprint

analysis is generally accepted in the scientific community. Id. at 103-04. The supreme

court declined to reach the issue of whether the district erred in failing to hold a complete

Frye-Mack hearing before admitting fingerprint evidence, concluding that any error in the

admission of that evidence was harmless because “there is no reasonable possibility that

the admission of the evidence significantly affected the verdict.” Id. at 104. But the

majority noted its agreement with the position taken by Justice Meyer in her concurrence

6 Additionally, “as with all testimony by experts, the evidence must satisfy the

requirements of Minn. R. Evid. 402 and 702—be relevant, be given by a witness

qualified as an expert, and be helpful to the trier of fact.” Goeb, 615 N.W.2d at 814.

14

that “lengthy use of a method by law enforcement, and even lengthy unquestioning

acceptance by courts, does not [by itself] exempt expert evidence from scrutiny under the

first prong of Frye-Mack . . . .” Id. at 103 n.3 (alteration in original). Both the majority

opinion and Justice Meyer’s concurrence in Hull referenced the 2009 NAS report, which

called attention to the need for scientific studies on friction-ridge-print analysis. Id. at

104 n.4; id. at 109-10 (Meyer, J., concurring).

Based on Hull, the district court granted Dixon’s request for a full Frye-Mack

hearing in this case. In addition to testimony from witnesses outlined above, the district

court admitted 35 exhibits, including the 2009 NAS report and reports authored by

Langenburg, Dr. Neumannn, and Dr. Zabell. The district court also reviewed caselaw,

starting with the first reported case on the admissibility of fingerprint evidence, People v.

Jennings, 96 N.E. 1077, 1082 (Ill. 1911) (holding that there is a scientific basis for the

system of fingerprint identification and that this identification method is in such general

and common use that the courts cannot refuse to take judicial cognizance of it). The

district court concluded that fingerprint identification evidence is currently admitted in all

states and in all 11 federal circuits and that no published opinion has held that fingerprint

evidence is not accepted in the relevant scientific community.

Standard of review

“The standard of review of admissibility determinations under Frye-Mack is two-

pronged.” Goeb, 615 N.W.2d at 815. Whether the scientific technique is generally

accepted in the relevant scientific field is a question of law that this court reviews de

novo. Id. Whether “‘the [scientific technique] itself is reliable and . . . its administration

15

in the particular instance conformed to the procedure necessary to ensure reliability’” is

reviewed for an abuse of discretion. Id. at 814-15 (quoting Moore, 458 N.W.2d at 98).

I. Composition of the relevant scientific community

Dixon first argues that “[t]he district court erred in finding that the relevant

scientific community consist[s] of latent print examiners.” Although Dixon correctly

states that the district court, in defining the relevant scientific community, relied in part

on Fenney, 448 N.W.2d at 59, Dixon incorrectly states that the district court limited the

relevant scientific community in this case to latent-print examiners.

In Fenney, the supreme court quoted State v. Anderson, 379 N.W.2d 70, 79 (Minn.

1985), for the proposition that “‘[t]he scientific technique on which expert testimony is

based must be scientifically reliable and broadly accepted in its field,’” and noted that

“[t]he test, then requires neither unanimity nor acceptance outside its particular field.”

448 N.W.2d at 57-58. At issue in Fenney was the forensic use of electrophoretic testing

of dried bloodstains. Id. at 58. The district court in Fenney concluded that the evidence

was admissible because the electrophoresis process is accepted as reliable by the relevant

scientific community, which consisted of criminal analysts and War Memorial Blood

Bank personnel, and the test was performed correctly. Id.

Fenney argued to the supreme court that the district court erred in identifying the

relevant scientific community, relying on a 1986 opinion from Michigan that excluded

practitioners of electrophoresis from the relevant scientific community by requiring that

witnesses qualified to testify as members of the relevant scientific community must be

“‘disinterested and impartial’ experts whose ‘livelihood [s are] not intimately connected

16

with the new technique.’” Id. at 60 (quoting People v. Young, 391 N.W.2d 270, 274, 276

(Mich. 1986)). The Minnesota Supreme Court concluded that “[t]he Young decision is

flawed from the Minnesota perspective . . . . Minnesota’s interpretation of Frye requires

‘experts in its field’ and has no such narrow requirement of disinterestedness.” Id. The

supreme court, noting that the testimony established that electrophoretic testing of dried

bloodstains is mainly used in connection with forensics, stated that “[t]aking forensics as

the relevant field, then those actually involved with electrophoretic typing of dried

bloodstains constitute the experts who must widely share the view that the results are

reliable.” Id. at 59. The supreme court noted that, arguably, Fenney’s witness was not an

“‘expert’ ‘in the particular field’ as is required by the [Frye-Mack] standard” because the

witness had never done electrophoresis on dried bloodstains. Id. But the supreme court

did not decide that issue “because the ‘widely shared’ view of all the experts who

testified was that electrophoretic testing of dried aged bloodstains was reliable as long as

certain standards were met and controls applied.” Id.

Dixon argues that the district court in this case read Fenney too narrowly, noting

that Minnesota courts have repeatedly rejected arguments to admit polygraph evidence

based on the testimony of lie-detector practitioners concerning reliability. Dixon cites

State v. Anderson, 379 N.W.2d 70, 79 (Minn. 1985), and State v. Michaeloff, 324 N.W.2d

926, 927 (Minn. 1982), but although these cases reject polygraph evidence as not

sufficiently reliable, neither of these cases excludes lie-detector practitioners from the

relevant scientific community for purposes of a Frye hearing. In State v. Kolander, the

17

supreme court implied that lie-detector operators are, in fact, part of the relevant

scientific community for purposes of a Frye analysis, stating:

We have no doubt that the lie detector is valuable in

investigative work of law enforcement agencies . . . but we

are in accord with the rule that the lie detector has not yet

attained such scientific and psychological accuracy, nor its

operators such sureness of interpretation of results shown

therefrom, as to justify submission thereof to a jury as

evidence of the guilt or innocence of a person accused of a

crime.

236 Minn. 209, 221-22, 52 N.W.2d 458, 465 (1952) (emphasis added).

Dixon argues that Dr. Zabell is a member of the relevant scientific community,

and he points out that Dr. Zabell testified that the 2009 NAS report should be considered

to be the work of the relevant scientific community. But Dixon concedes that Dr. Zabell

also testified that Langenburg and Dr. Neumann should be included in the relevant

scientific community because they are forensic scientists who have serious scientific

training. And, contrary to Dixon’s assertion, the district court appears to have included

Dr. Zabell, as well as Langenburg and Dr. Neumann, in the relevant scientific

community. The district court noted that Dr. Zabell does not advocate for the exclusion

of latent-print identification evidence as unreliable.7 And the district court did not

7 Dr. Zabell’s opinion appears to support an argument not advanced in this case that

admissibility of latent-print-identification testimony is more properly analyzed under

Minn. R. Evid. 702. The supreme court has stated that the analysis of foundational

reliability under rule 702 “is nearly identical to the analysis done under the second prong

of the Frye-Mack test. . . . Therefore, it makes little difference whether the district court

call[s] the analysis a ‘Frye-Mack’ analysis or a “Rule 702” analysis. As long as the

district court considered the relevant foundational reliability factors, we will not reverse

its evidentiary finding absent an abuse of discretion.” Doe v. Archdiocese of St. Paul,

817 N.W.2d 150, 168 (Minn. 2012).

18

exclude the NAS committee from the relevant scientific community; rather, the district

court pointed out that the 2009 NAS report “does not say that fingerprint evidence is not

accepted in the relevant scientific community and does not say, under either Daubert or

Frye, that it should be excluded from court.” Additionally, the district court’s research

did not produce, nor has Dixon cited, “a single case where a court has relied on the NAS

Report to exclude fingerprint evidence.” The district court cited a number of cases in

which the 2009 NAS report was analyzed and fingerprint evidence was held to be

admissible. See United States v. Rose, 672 F. Supp. 2d 723, 725-26 (D. Md. 2009);

Johnston v. State, 27 So.3d 11, 20-21 (Fla. 2010); Commonwealth v. Gambora, 933

N.E.2d 50, 58 (Mass. 2010).

The district court stated that the relevant scientific community in this case consists

of experts in the field, and the district court’s analysis includes as such experts those

actually involved in latent-print analysis and those who actually research the reliability of

latent-print analysis. We conclude that the district court has appropriately defined the

relevant scientific community for purposes of the Frye standard.

II. Acceptance of the ACE-V methodology of friction-ridge-print analysis

by experts in the field

The district court, stating that “[t]he fact that friction ridge analysis can and should

be improved and strengthened does not mean that it is inadmissible under Frye,”

concluded, based on the record, that experts in the relevant scientific field widely accept

the ACE-V methodology and individualization and believe that the ACE-V methodology

produces scientifically reliable results admissible at trial. Our painstaking review of the

19

Frye-Mack hearing record leads us to the same conclusion. As Dr. Zabell testified, the

fact that there is a subjective component to print analysis does not mean that the analysis

is not reliable or accurate, but only means that testimony about the conclusions should be

related to an examiner’s experience and knowledge. And the 2009 NAS report states that

“friction ridge analysis has served as a valuable tool, both to identify the guilty and to

exclude the innocent.” 2009 NAS report at 142. We conclude that the state met its

burden with regard to the Frye portion of the Frye-Mack standard.

III. Mack analysis of the reliability of the particular evidence offered

“District court determinations under the [Mack] prong [of the Frye-Mack

standard], foundational reliability, are reviewed under an abuse of discretion standard, as

are determinations of expert witness qualifications and helpfulness.” Goeb, 615 N.W.2d

at 815. Bunkers, the examiner in this case, testified about her certification and the

accreditation of the lab, and detailed the process she followed to reach the conclusion of

identification, a conclusion that was verified by an independent examiner, and later by

Langenburg’s independent analysis of the same prints. Langenburg testified at length

about the process and results by which he too came to an identification conclusion that

was verified. He further testified that the probability of anyone but Dixon being the

source of the latent prints was so small “that we would . . . have dismissed it.”

Despite Dixon’s criticism about Bunkers’s failure to completely document every

step of the process she followed and her failure to use a blind verification, the record is

overwhelming that Bunkers’s analysis conformed to the procedures necessary to ensure

reliability.

20

IV. Permissible opinion testimony

The district court specified what testimony by Bunkers would be permitted at trial.

The district court stated that Bunkers could testify about her training and experience, the

lab’s certification and procedures, and the procedures that she followed in this case. The

district court stated that Bunkers could testify that she obtained ten possible candidates

for comparison from MAFIN, but she could not testify that Dixon was the number-one

candidate or that the fingerprint card she obtained for Dixon is from the Minneapolis

police repository of people booked for, or convicted of, felonies. The district court held

that Bunkers “may offer her conclusion of identification and she may state her opinion as

to her level of certainty or confidence in that opinion” by stating that her opinion is “to a

reasonable scientific certainty.”

On appeal, Dixon challenges as error the district court’s ruling that Bunkers may

testify that her opinion is “to a reasonable degree of scientific certainty.” “The admission

of expert testimony is within the broad discretion accorded” to a district court judge

whose rulings will be reversed only if the district court clearly abuses that discretion.

State v. Ritt, 599 N.W.2d 802, 810 (Minn. 1999); see also State v. Grecinger, 569

N.W.2d 189, 194 (Minn. 1997) (stating that reversal of evidentiary rulings requires

“apparent error”).

Dixon implies that allowing Bunkers to use the phrase “to a reasonable scientific

certainty” is an “assertion of absolute certainty” that could mislead a jury, pointing out

that the 2009 NAS report criticizes the use of certainty in the absence of a statistically

validated model or validated standards for declaring a match. But Dixon cites no

21

authority, controlling or persuasive, that the permitted phrase constitutes an assertion of

absolute certainty or that any appellate court has found that permitting a latent-print

examiner to so testify constitutes an abuse of discretion.

Minnesota courts have held that experts in various fields may offer opinion

testimony “to a reasonable scientific certainty,” implicitly holding that the phrase does

not imply “to the exclusion of all others.” See State v. Bloom, 516 N.W.2d 159, 168

(Minn. 1994) (allowing a properly qualified expert to express an opinion “to a reasonable

scientific certainty” that the appellant is the source of the DNA while not allowing the

expert to say that a particular profile is unique); see also State v. Riley, 568 N.W.2d 518,

526 (Minn. 1997) (concluding that it was not error for the district court to permit a

ballistics expert to testify to a “reasonable degree of scientific certainty” that the handgun

was the source of the collected shell casings because the expert proffered qualitative

testimony and did not testify conclusively that the shells could not have come from any

other gun); State v. Jensen, 482 N.W.2d 238, 239-40 (Minn. App. 1992) (holding that the

district court did not err in allowing experts in blood alcohol concentration analysis to

testify that “based on the[ir] calculations and assumptions they could conclude with a

reasonable degree of scientific certainty that [appellant’s] alcohol concentration at the

time of the accident fell within their estimated ranges,” despite the fact that it was

possible that his alcohol concentration fell outside the range, because this court could not

say the trial court abused its discretion in determining that the experts’ estimates were

probably correct and had a reasonable basis), review denied (Minn. May 15, 1992). The

district court did not abuse its discretion by allowing Bunkers to so testify in this case.

22

D E C I S I O N

The district court did not err in defining the relevant scientific community for

purposes of the Frye hearing as individuals experienced in latent-print analysis and

individuals involved in testing the validity of the ACE-V methodology. The state,

proponent of the friction-ridge-print-identification evidence in this case, met its burden of

demonstrating that the ACE-V method of friction-ridge-print analysis is widely accepted

as reliable by experts in the field. The district court did not abuse its discretion by

finding that the state met the second prong of the Frye-Mack test by demonstrating that

the identification process in this case is reliable. And the district court did not abuse its

discretion by allowing the person who made the print identification to testify that she

framed her identification opinion “to a reasonable scientific certainty.”

Affirmed.